B-164147, JUNE 3, 1968, 47 COMP. GEN. 706

B-164147: Jun 3, 1968

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UPON CONVERSION TO A TEMPORARY- INTERMITTENT POSITION WHICH IS NOT SUBJECT TO THE LEAVE STATUTE (5 U.S.C. 6301. ENUNCIATING THE PRINCIPLE THAT AN EMPLOYEE MAY BE PAID FOR ANNUAL LEAVE THAT IS NOT LEGALLY TRANSFERABLE. GEN. 523 THAT A LUMP SUM LEAVE PAYMENT MAY NOT BE MADE UNLESS A SEPARATION ACTUALLY TAKES PLACE IS APPLICABLE ONLY TO SITUATIONS INVOLVING CONTINUING PROGRAMS UNDER WHICH EMPLOYEES ARE REQUIRED TO RETURN TO FULL-TIME EMPLOYMENT AFTER A PERIOD OF INTERMITTENT EMPLOYMENT. THE QUESTION INVOLVED IS WHETHER MISS CARPENTER IS TO BE REGARDED AS HAVING BEEN SEPARATED FROM THE SERVICE FOR THE PURPOSE OF RECEIVING A LUMP -SUM LEAVE PAYMENT UPON HER CONVERSION FROM A 700-HOUR TEMPORARY APPOINTMENT (CASH CLERK.

B-164147, JUNE 3, 1968, 47 COMP. GEN. 706

EXEMPT FROM LEAVE ACT - LEAVES OF ABSENCE - LUMP-SUM PAYMENTS - TRANSFERS - POSITIONS AN EMPLOYEE WHO EARNED LEAVE UNDER A 700 HOUR TEMPORARY APPOINTMENT IN WHICH SHE WORKED A REGULAR TOUR OF DUTY, UPON CONVERSION TO A TEMPORARY- INTERMITTENT POSITION WHICH IS NOT SUBJECT TO THE LEAVE STATUTE (5 U.S.C. 6301, ET SEQ.), BUT UNDER WHICH SHE RETAINS THE SAME TITLE AND GRADE, MAY RECEIVE A LUMP SUM LEAVE PAYMENT UNDER THE RULE IN 33 COMP. GEN. 85, 88, ENUNCIATING THE PRINCIPLE THAT AN EMPLOYEE MAY BE PAID FOR ANNUAL LEAVE THAT IS NOT LEGALLY TRANSFERABLE. THE PRINCIPLE IN 37 COMP. GEN. 523 THAT A LUMP SUM LEAVE PAYMENT MAY NOT BE MADE UNLESS A SEPARATION ACTUALLY TAKES PLACE IS APPLICABLE ONLY TO SITUATIONS INVOLVING CONTINUING PROGRAMS UNDER WHICH EMPLOYEES ARE REQUIRED TO RETURN TO FULL-TIME EMPLOYMENT AFTER A PERIOD OF INTERMITTENT EMPLOYMENT.

TO G. L. ABNEY, UNITED STATES DEPARTMENT OF AGRICULTURE, JUNE 3, 1968:

WE REFER TO YOUR LETTER OF APRIL 22, 1968, REQUESTING A DECISION CONCERNING THE PROPRIETY OF CERTIFYING FOR PAYMENT A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MISS RUTH L. CARPENTER, AN INTERMITTENT EMPLOYEE OF THE FARMERS' HOME ADMINISTRATION COVERING A LUMP-SUM PAYMENT FOR ANNUAL LEAVE.

THE QUESTION INVOLVED IS WHETHER MISS CARPENTER IS TO BE REGARDED AS HAVING BEEN SEPARATED FROM THE SERVICE FOR THE PURPOSE OF RECEIVING A LUMP -SUM LEAVE PAYMENT UPON HER CONVERSION FROM A 700-HOUR TEMPORARY APPOINTMENT (CASH CLERK, GS-530-02) IN WHICH SHE WORKED A REGULAR TOUR OF DUTY AND WAS SUBJECT TO THE STATUTORY LEAVE PROVISIONS (5 U.S.C. 6301, ET SEQ.) TO A TEMPORARY-INTERMITTENT POSITION WHICH WAS NOT SUBJECT TO SUCH STATUTORY LEAVE PROVISIONS AND TO WHICH SHE COULD NOT TRANSFER THE ANNUAL LEAVE TO HER CREDIT IMMEDIATELY PRIOR TO SUCH CONVERSION. SEE 5 U.S.C. 6301 (2) (II).

YOU CALL ATTENTION TO OUR DECISION IN 37 COMP. GEN. 523 WHICH HELD THAT NO LUMP-SUM LEAVE PAYMENT COULD BE MADE UNLESS A SEPARATION ACTUALLY TAKES PLACE WHEREAS THE DECISION IN 33 COMP. GEN. 85, 88, RECOGNIZES THE PROPRIETY OF MAKING A LUMP-SUM LEAVE PAYMENT WHEN AN EMPLOYEE TRANSFERS FROM A POSITION SUBJECT TO THE LEAVE STATUTE TO A POSITION NOT COVERED BY SUCH LEAVE STATUTE. YOU POINT OUT THAT IN THE PRESENT CASE THE EMPLOYEE'S TITLE AND GRADE REMAINS THE SAME AFTER HER CONVERSION BUT THAT HER TYPE OF APPOINTMENT WAS CHANGED FROM ONE THAT WAS SUBJECT TO THE LEAVE STATUTE TO ONE THAT IS NOT SUBJECT TO THE LEAVE STATUTE.

THE PRINCIPLE ENUNCIATED IN THE DECISION APPEARING IN 37 COMP. GEN. 523 IS APPLICABLE ONLY TO SITUATIONS INVOLVING CONTINUING PROGRAMS UNDER WHICH EMPLOYEES ARE REQUIRED TO RETURN TO FULL-TIME EMPLOYMENT AFTER A PERIOD OF INTERMITTENT EMPLOYMENT AND, THEREFORE, SUCH PRINCIPLE IS NOT CONTROLLING IN THE PRESENT CASE. RATHER, WE CONSIDER THAT THE PRINCIPLE ENUNCIATED IN 33 COMP. GEN. 85, 88, SHOULD BE APPLIED IN THE PRESENT CASE SINCE IT WAS NOT LEGALLY PERMISSIBLE TO TRANSFER THE ANNUAL LEAVE TO THE CREDIT OF THE EMPLOYEE UPON HER APPOINTMENT TO THE INTERMITTENT POSITION. CF. 39 COMP. GEN. 308. ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.